The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer – Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin

     with participation of representatives:

     of the House of Representatives of the National Assembly of the Republic of Belarus – S.V. Kamenetsky, Head of Standing commission of the House of Representatives of the National Assembly on labour, social security, on affairs of veterans and invalids; N.N. Kulesh, Head of Main expert and legal Department of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;

     of the Council of the Republic of the National Assembly of the Republic of Belarus – T.I. Sushkova, Head of Department of civil, social and economic legislation of Main expert and legal Department of the Secretariat of the Council of Republic of the National Assembly of the Republic of Belarus;

     has examined in open Court session the case “On the conformity between the Constitution of the Republic of Belarus and point “г” of part one of Article 68 of the Law of the Republic of Belarus “On pension security".

     The Court session was attended by: A.A. Fedortsov – First Deputy Chairman of the Supreme Court of the Republic of Belarus; A.P. Jegorov – Deputy Chairman of the Supreme Court of the Republic of Belarus; A.V. Ivanovsky – Deputy Procurator-General of the Republic of Belarus; A.S. Petrash – First Deputy Minister of Justice of the Republic of Belarus.

     The proceedings were brought by the Constitutional Court of the Republic of Belarus of 15 June 2007 as a result of the proposal of the House of Representatives of the National Assembly of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Article 22 of the Code of the Republic of Belarus on judicial system and status of judges.

     The subject to verification was point “г” of part one of Article 68 of the Law of the Republic of Belarus “On pension security” (with further alterations and addenda) (Vedamastsi Vyarkhovnaga Saveta Republiki Belarus, 1992, No. 17, art. 275; 1994, No. 8, art.111) according to which pensions granted under the specified Law shall be increased with respect to the citizens who ill-founded were subjected to repressions on political reasons during the period of repressions twenties-eighties and subsequently rehabilitated, – up to 50 per cent of minimum rate of old-age pension.

     In its proposal on giving conclusion on the conformity of the point “г” of part one of Article 68 of the Law of the Republic of Belarus “On pension security” and the Constitution of Republic of Belarus the House of Representatives specified that in accordance with part one of point 16 of the Provision on the procedure of the reinstatement of the rights of citizens who suffered from repressions of twenties-eighties approved by Resolution of the Supreme Council of the Republic of Belarus of 21 December 1990 (with further alterations and addenda), persons suffered from political repressions shall be considered the children who were with parents in the places of confinement, in exile, expulsion, special deportation; children who under age found themselves without guardianship of parents who were ill-founded repressed on political reasons; children, husband (wife) of persons executed by shooting or those dead in the places of confinement and rehabilitated posthumously.

    The House of Representatives noted that in spite of the fact that in accordance with part two of point 16 of the given Provision the specified persons are under the procedure and conditions of reinstatement of the rights, granting privileges prescribed for victims of political repressions, in practice there is no increase of pensions for the persons from among children who under age found themselves without guardianship of parents who were ill-founded repressed on political reasons, as well as children of persons executed by shooting or those dead in the places of confinement and rehabilitated posthumously.

     The House of Representatives deems that this practice of application of point “г” of part one of Article 68 of the Law of the Republic of Belarus “On pension security” is not in line with the normative regulations of point 16 of the abovementioned Provision, because prevents from realization of the right to increase the rate of pensions granted for the pensioners from among children who under age found themselves without guardianship of parents who were ill-founded repressed on political reasons, as well as children of persons executed by shooting or those dead in the places of confinement and rehabilitated posthumously.

     Having heard the judge-speaker K.I. Kenik, representatives of parties, specialists G.V. Holodinskaja and L.M. Jashkova, having analysed the provisions of the Constitution, legislative and other normative legal acts, as well as the practice of their application, having studied all the materials of the case, the Constitutional Court found the following.

     Legal regulation of relationship on rehabilitation of victims of political repressions, on reinstatement of their rights, on giving privileges, on repayment of compensations, on pension security shall be in accordance with Resolution of the Supreme Council of the Republic of Belarus of 21 December 1990 “On adoption of the Provision on the procedure of reinstatement of the rights of citizens who was suffered from repressions during the period of twenties-eighties (with further alterations and addenda), with Resolution of the Supreme Council of the Republic of Belarus of 6 June 1991 “On procedure of rehabilitation of victims of political repressions during the period of twenties-eighties in the Republic of Belarus” (with further alterations and addenda), with Resolution of the Council of Ministers of the Republic of Belarus of 29 December 1990 No. 349 “On granting privileges for persons repressed ill-founded during the period of twenties-eighties and subsequently rehabilitated” (with further alterations and addenda), with Law of the Republic of Belarus of 17 of April 1992 “On pension security” (with further alterations and addenda).

     According to point 2 of the Provision on the procedure of reinstatement of the rights of citizens who suffered from repressions during the period of twenties-eighties (hereinafter is also referred to as Provision) its force shall cover citizens, who repressed illegally on political, social, national, religious and other reasons: under judicial rulings; under decisions of extrajudicial bodies of thirties-fourties and at the beginning fifties: “troiki”, “dvoiki” NKVD – UNKVD, bodies of OGPU and “osobyje soveschanija” NKVD – MGB – MVD of the USSR; under decisions of executive committees of local Councils, other state bodies on the exile or expulsion of peasants and other persons from the places of permanent habitation.

     In accordance with point 1 of Resolution of the Supreme Council of the Republic of Belarus of 6 June 1991 “On procedure of rehabilitation of victims of political repressions during the period of twenties-eighties in the Republic of Belarus” persons repressed ill-founded are citizens of the Republic of Belarus, of the USSR, of foreign states or stateless persons called to criminal liability in the territory of the Republic of Belarus by judicial or extrajudicial bodies on political, social, national, religious and other reasons for treasons (counter-revolutionary) crimes and subjected under the same reasons to exile, expulsion, special deportation, removal out of the bounds of the Republic of Belarus under the administrative procedure.

    According to point 2 of the mentioned Resolution the subject to rehabilitation on this ground shall be:

     a) persons illegally sentenced by the courts on charge of commission of treasons (counter-revolutionary) crimes except for the instances stipulated in the Resolution in question;

     b) persons repressed under decisions of extrajudicial bodies: bodies of OGPU and “osobyje soveschanija” of VCK, GPU–OGPU, NKVD, MGB, “dvoiki” “troiki” GPU, UNKVD–NKVD;

     c) peasants, members of their families and other citizens who illegally were subject to exile, expulsion, special deportation, removal out of the bounds of the Republic of Belarus under the administrative procedure, as well as peasants, including those who were found as kulaks, convicted for failure to pay the raised taxes and for refusal to meet the duties and works of general state significance under Article 93 and Article 94 of the Criminal Code of BSSR of 1928;

     d) persons who under judicial rulings were placed illegally into mental establishments for forced treatment as a result of institution of criminal cases.

     Pension security of rehabilitated persons according to point 15 of the Provision (in wording of Resolution of the Supreme Council of 21 December 1990) (at present – point 17) should be carried out in accordance with the Law of the USSR “On pension security of citizens in the USSR”. The given Law envisaged only inclusion into the length of service of the time period of serving the sentence in the places of confinement and exile threefold, but contained no provisions on pension increasing.

     As a result of Resolution of the Supreme Council of the Republic of Belarus of 23 December 1991 “On making alterations and addenda into legislative acts of the Republic of Belarus regulating the issues of rehabilitation of citizens suffered from repressions in twenties-eighties’ the provision was added by point 16 on finding as persons victims of political repressions children who were in places of confinement, in exile, expulsion, special deportation due to repression of their parents. According to part two of the given point the children in question were under the procedure and conditions of restoration of the rights, granting privileges and repayment of money compensations fixed with respect to the victims of political repressions.

     Issue on pension increasing for victims of political repressions primarily was settled in Resolution of the Supreme Council of 6 June 1991 point 10 of which contained the instruction to the Council of Ministers of the Republic of Belarus to raise since 1 July 1991 the rates of pensions for the citizens who were ill-founded called to criminal liability during the period of political repressions of twenties-eighties and rehabilitated subsequently. At the beginning, in accordance with the given Resolution since 1 July 1991 the rate of the increasing was 25 per cent of minimum age pension. The increasing in question covered both the persons who were illegally repressed and rehabilitated subsequently and, according to the specialists of the Ministry of Labour and Social Protection, after adoption by the Supreme Council of Resolution of 23 December 1991 – covered the children who were in the places of confinement, in exile, expulsion, special deportation due to repression of their parents under condition of giving them documents on rehabilitation.

     The norm on increasing pensions for citizens who were repressed ill-founded on political reasons during the period of repressions of twenties-eighties and rehabilitated subsequently was later on fixed in Article 68 of the Law of 17 April 1992 “On pensions security” that was enforced since 1 January 1993. Under the specified Law in its original wording pensions were increased up to 25 per cent (point “в” of part one of Article 68), and after making alterations and addenda into it of 2 February 1994 – up to 50 per cent of minimum rate of the age pension (point “г” of part one of Article 68). Financing of expenses in question was stipulated while adopting the given Law.

     Since that time in practice by solving the issue on increasing of pensions for the children who were in the places of confinement, in exile, expulsion, special deportation due to repression of their parents the authorized bodies had become guided by the norms of the Law “On pension security”, however, the children in question according to point 16 of the Provision were considered as victims of political repressions and that gave rise uncertainty as regards the possibility of referring them to the category of repressed directly.

     The letter of the Ministry of Social Security of the Republic of Belarus of 26 February 1993 No. 2-1/41 had also specified the necessity of increasing pensions for the specified category of children. Review No. 4 of practice of application of pension legislation prepared by the Ministry in question and forwarded by letter of 18 August 1993 No. 2-1/158 to oblast, Minsk city divisions of social security, to centers on calculation and payment of pensions and allowances shall also signify about this fact.

     In addition, departmental acts paid attention to the fact that the right to increase pensions shall have not only the persons who were repressed ill-founded on political reasons during the period of repressions of twenties-eighties and rehabilitated subsequently, but also those persons who were repressed on social, national, religious and on other reasons, however, Article 68 of the Law “On pension security” stipulates only the persons repressed on political reasons.

     The Constitutional Court deems that taking into account the content specified notions and their co-relation such an approach is considered to be lawful.

     Analysis of point 2 of Provision approved by Resolution of the Supreme Council of 21 December 1990 and point 2 of Resolution of the Supreme Council of 6 June 1991 in their interrelation, study of archive cases and materials shall signify about taking decisions on repressions also with respect to the children who were expelled, deported due to repression of their parents. Children who together with their parents were in the places of confinement, in exile, expulsion, special deportation experienced the same hardships as their parents did. The children in question were under conditions of obvious deprivation or restriction of rights and liberties. Afterwards, in accordance with new legislation they were found by the competent state bodies as persons repressed and they were subject to rehabilitation with issuing them the relevant documents and with practical jurisdiction of point “г” of part one of Article 68 of the Law “On pension security”.

         The Supreme Council of the Republic of Belarus by its Resolution of 3 December 1993 “On making alterations and addenda into the legislative acts of the Republic of Belarus regulating the issues of rehabilitation of victims of political repressions of twenties-eighties and restoration of their rights” made new wording of point 16 of Provision, according to which equally with the children who together with their parents were in the places of confinement, in exile, expulsion, special deportation the children who found themselves orphans due to repression of both parents have been referred to the victims of political repressions. Part two of the given point put the children in question under the procedure and conditions of restoration of rights, granting privileges fixed for the victims of political repressions.

     The Supreme Council of the Republic of Belarus by its Resolution of 18 October 1994 “On making alterations and addenda into the Provision on procedure of restoration of rights of citizens who suffered from repressions of twenties-eighties” has repeatedly made new wording (effective also at present moment) of point 16 of Provision according to which the point in question was added with specification of one more category of victims of political repressions – children, spouse of persons executed by shooting or those dead in the places of confinement and rehabilitated posthumously.

     As with respect to other categories of children listed in point 16 of Provision, by force of part two of the given point those persons were put under the procedure and conditions of restoration of rights, granting privileges for victims of political repressions.

     Direct indication in point 16 of Provision to the children who were together with their parents in the places of confinement, in exile, expulsion, special deportation as persons – victims (or those suffered) from political repressions challenged the validity of putting them under jurisdiction of point 2 of Resolution of the Supreme Council of 6 June 1991 that made reference directly to the persons repressed. Moreover, increasing pensions for them gave the ground for other categories of children, i.e. those who under the age found oneself without the guardianship of parents who were repressed ill-founded on political reasons , as well as for the children executed by shooting or those dead in the places of confinement and rehabilitated posthumously to produce claims to increase pensions, whereas all those categories of children were listed in one point of Provision (point 16) and found to be victims of political repressions.

     The law maker by enlarging the circle of persons suffered from political repressions at the same time made no stipulation in the Law “On pensions security” of the right of children who under age found themselves without the guardianship of the parents who were repressed ill-founded on political reasons; the right of children of persons executed by shooting or those dead in the places of confinement and rehabilitated posthumously (paragraphs three and four of part one of point 16 of Provision) to increase of pensions awarded to them.

     In the process of law making activities the Supreme Council undertook the attempts to adjust Article 68 of the Law “On pension security” with the purpose of legislative stipulation of the right of all the children who were found to be victims of political repressions to increase pensions with respect to them, but the draft Law on making the relevant alterations and addenda was not adopted, and the verbatim records of the session of the Supreme Council of 1 March 1995 shall, in particular, signify about that fact.
The Constitutional Court by emphasizing in this respect the collision of two special legislative acts – Provision and Law “On pension security” deems that whereas in this particular case under settlement is the issue on the right to pension, then one should proceed from the content of the norms of the Law “On pension security” as the special legislative act that shall regulate the relevant relations.

     The Constitutional Court shall also paid attention to the fact that elaboration and adoption of drafts of the specified above Resolutions of the Supreme Council that are of the normative nature was carried out with gross violation of the effective legislation, first of all, Provisional Rules of Procedure of the Supreme Council, Article 94 of which envisaged directly that “by submission the draft where its realization will entail additional material and other expenses, there shall be enclosed its financial and economic basing”. According to the verbatim records of the Supreme Council and according to other available materials, there was no financial and economic basing of the given drafts.

     Under the Constitution of the Republic of Belarus adopted of 15 March 1994 the normative legal acts must be adopted by the Supreme Council in the form of the laws that under its norms shall be signed by the President of the Republic of Belarus. Contrary to that on 18 October 1994 the Supreme Council without interaction with other branches of power, as the Constitution required, by its Resolution made alterations and addenda into Provision on procedure of restoration of rights of citizens who suffered from repressions in twenties-eighties. The act in question was signed by the Chairman of the Supreme Council. Resolution of 18 October 1994 had no financial and economic basing, there were determined no sources of financing of the expenses it stipulated.

     Thus, the Constitutional Court notes that the Supreme Council while passing its Resolutions on the specified issues, including Resolution of 18 October 1994 made repeatedly gross violations of the Constitution and the effective legislation.

     On the basis of the stated above, the Constitutional Court comes to the conclusion that norms of point 16 of Provision in current wording, to which the House of Representative, as well as other state bodies that share its position, for motivation of its proposal on verification of constitutionality of point “г” of part one of Article 68 of the Law “On pension security” makes its references, shall have no supremacy over the norms of the Law “On pension security”.

     Complaints and applications to various state bodies of persons who were found to be victims of political repressions, Belarusian public association of victims of political repressions of twenties-eighties, as well as positions on the issue under discussion of the state bodies shall signify about unclear understanding by them in practice both point “г” of point one of Article 68 of the Law “On pension security” and point 16 of Provision. Such an understanding of the norms of effective legislation, in the opinion of the Constitutional Court, was caused by miscalculations while elaborating draft enforceable enactments on rehabilitation of victims of political repressions, restoration of their rights, that to a certain extent is conditioned by both the novelty of the problem under solution and by failure to observe certain rules of norm making activities. The given acts contain different notions, terms and their definitions (“victims of political repressions”, “those suffered from political repressions”; point “г” of part one of Article 68 of the Law “On pensions security” speaks about the citizens who were repressed on political reasons ill-founded and rehabilitated subsequently, whereas according to point 2 of the Provision it shall cover the citizens who were repressed ill-founded on political, social, national, religious and other reasons).

      That was resulted in the fact that the answers of different state bodies to the Constitutional Court during the time period of preparation of the case for examination, equally as speeches at the sitting of the court contained diametrically opposite approaches: from finding the right to pension increasing for all the categories of children who were found as those suffered from repressions till absolute denial of their right. It is not surprising in this situation that after making alterations by the Supreme Council in its Resolution of 18 October 1994 in point 16 of the Provision the children who found themselves without guardianship of parents, who were repressed on political reasons ill-founded, as well as children of persons executed by shooting or those dead in the places of confinement and rehabilitated posthumously made claims to increase them pensions on equal terms with children who were together with their parents in the places of confinement, in exile, expulsion, special deportation.

     The Constitutional Court emphasizes that for the state ruled by law, and the Republic of Belarus is proclaimed as such, the fundamental principle must be clear, coordinated legal regulation of social relations.

     Meantime, analysis of normative legal acts as regards increasing of pensions for the citizens who were repressed ill-founded and rehabilitated subsequently, including children found as those suffered from political repressions shall signify about the necessity of carrying out considerable work regarding regulation of the legislation in part of the terms, notions and wordings used in it.

     On the grounds of the stated above and guiding by parts one, four and seven of Article 116 of the Constitution, Articles 22 and 24 of the Code of the Republic of Belarus on judicial system and status of judges, the Constitutional Court

     RULED:

    1. To find point “г” of point one of Article 68 of the Law of the Republic of Belarus of 17 April 1992 “On pensions security” (with further alterations and addenda) that stipulates increasing the rate of pensions for citizens who were repressed ill-founded on political reasons during the time period of repressions of twenties-eighties and rehabilitated subsequently to be in line with the Constitution of the Republic of Belarus.

    2. To find that the practice that took place since 1 January 1993 based on putting under the effect of point “г” of part 1 of Article 68 of the Law of the Republic of Belarus “On pensions security” only the children who together with their children were in the places of confinement, in exile, expulsion, special deportation and rehabilitated consequently with granting them the relevant documents is in the conformity with the aims and the tasks of the legislation regulating relations on rehabilitation of victims of political repressions, restoration of their rights, pension securing and is in conformity with their factual status of those repressed ill-founded.

    3. To note that the effective legislation stipulates no right to increasing of pensions for other categories of children found as those suffered from political repressions in accordance with paragraph three and four of part one of point 16 of Provision on procedure of restoration of rights of citizens who suffered from repressions in twenties-eighties approved by Resolution of the Supreme Council of the Republic of Belarus of 21 December 1990 (with further alterations and addenda).

    4. To publish the present Judgment within the time period fixed by the legislation in newspapers “Zvyazda” and “Narodnaya gazeta”, as well as in National register of legal acts of the Republic of Belarus and in “Vesnik Kanstytutsijnaga Suda Respubliki Belarus”.

    5. The present Judgment shall come into legal force from the day of its adoption, is final and subject to no appeal or protest.

Presiding Officer —
Chairman of the Constitutional Court
of the Republic of Belarus                                                                                                  G.A. Vasilevich